Twenty Sixth Report Contents

Instruments relating to COVID-19

Restrictions on businesses and public gatherings

Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) (No. 2) Regulations 2020 (SI 2020/930)

Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) (Amendment) (No. 3) Regulations 2020 (SI 2020/935)

15.On 28 August 2020, a further review of data shared by Public Health England and the Joint Biosecurity Centre indicated that the incidence of COVID-19 in some parts of the City of Bradford Metropolitan District Council was decreasing. SI 2020/930 therefore amends the original restrictions4 to only include in the “protected area “ the wards of: Bolton and Undercliffe, Bowling and Barkerend, Bradford Moor, City, Clayton and Fairweather Green, Eccleshill, Great Horton, Heaton, Idle and Thackley, Keighley Central, Keighley East, Keighley West, Little Horton, Manningham, Queensbury, Royds, Thornton and Allerton, Toller, Tong, Wibsey, Windhill and Wrose, and Wyke. SI 2020/935 makes an immediate correction to the previous instrument to also remove the ward of Windhill and Wrose from the protected area for the purposes of these restrictions.

Health Protection (Coronavirus, Restrictions) (North of England) (Amendment) (No. 2) Regulations 2020 (SI 2020/931)

16.On 28 August 2020, data shared by Public Health England and the Joint Biosecurity Centre indicated that the incidence rates of COVID-19 in certain areas covered by the North of England Regulations5 were no longer significantly above the national average. These Regulations therefore remove those areas from the protected area and make them subject only to the remaining national restrictions and guidance: Stockport Metropolitan Borough Council, Burnley Borough Council, and Hyndburn Borough Council. Additionally, within Calderdale Metropolitan Borough Council and Kirklees Metropolitan Council, only the specific wards listed remain within the “protected area” for these purposes.

Health Protection (Coronavirus, Restrictions) (Greencore) Regulations 2020 (SI 2020/921)

17.During the period 9–15 August 2020, Northampton saw an increase of 8% in COVID-19 infections, raising the weekly incidence rate to 116.4 per 100,000 population (up from 38.6 the preceding week). Based on NHS Test and Trace data, most transmissions were traced back to workers at the Greencore Factories in Northampton. Greencore arranged for mass testing of the workforce of 1,140 workers, of which 214 were positive (19%). A further 79 cases were identified through NHS Test and Trace. These Regulations impose specific restrictions on anyone who worked at the factory from 7–21 August. The Department for Health and Social Care states that these measures were taken to prevent wider geographic lockdown measures similar to those introduced in Leicester but will expire after 28 days. We note that regulation 7 introduces a provision that a person who, without reasonable excuse, wilfully obstructs any person carrying out a function under these Regulations commits an offence subject to a fine of £1,000.

Changes to business practice and regulation

Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 (SI 2020/914)

Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2020 (SI 2020/924)

18.These instruments amend temporarily certain rules in relation to residential tenancies. SI 2020/914 amends Schedule 29 to the Coronavirus Act 2020 (“the Act”), which introduced emergency measures requiring residential landlords to provide extended notice periods of three months when seeking possession of either a social or privately rented property in England and Wales. These measures were introduced to protect tenants from eviction, by delaying when landlords could begin possession proceedings. The original measures were brought into force for an initial period of six months, which will expire on 30 September 2020. The Ministry of Housing, Communities and Local Government (MHCLG) says that in the light of the ongoing pandemic and the need to provide tenants with additional protections during the Winter months, this instrument extends the relevant period during which the emergency measures apply until 31 March 2021 and lengthens the required notice period to six months in most cases. According to MHCLG, this is appropriate given that the stay on housing possession proceedings in court will only be in force until 20 September,6 after which landlords will be able to progress cases through court. Extending the notice period will also help give tenants more time to find new accommodation. MHCLG says that to balance the interests of landlords and tenants, the notice periods are reduced to four weeks for cases that cause particular stress and financial strain for landlords, other tenants and local communities, such as cases of serious rent arrears (arrears of at least six months), anti-social behaviour and domestic abuse. SI 2020/924 extends the period for which certain notices are valid from six to ten months, to provide additional time in light of the change in notice period to six months, as provided for by SI 2020/914.

Competition Act 1998 (Coronavirus) (Public Policy Exclusions) (Amendment and Revocation) Order 2020 (SI 2020/933)

19.This Order amends four earlier instruments7 which were made to exclude certain business agreements from a ban on certain forms of anti-competitive behaviour, such as collusion and cartels, under Chapter 1 of the Competition Act 1998 (“the Act”). The aim of the earlier instruments was to allow coordination between businesses to enable them to provide essential services during the pandemic. This Order removes from these earlier instruments provisions which allow the Secretary of State to end the so-called “disruption period”, during which the exclusions apply, by specifying an end-date in a published notice. Instead, the disruption period will end when the respective instrument is revoked by another statutory instrument. The Department for Business, Energy and Industrial Strategy says that the changes are made in response to concerns raised by the Joint Committee on Statutory Instruments that the current provisions may constitute sub-delegation beyond what was envisaged under the Act.8 This Order also revokes a fifth related instrument, the Competition Act 1998 (Dairy Produce) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/481),9 which has expired, and the Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/369), as the Secretary of State is satisfied that the exceptional reasons for which SI 2020/369 was required have now abated as contracts to supply essential groceries to shielded people are ending.

Insolvency (Moratorium) (Special Administration for Energy Licensees) Regulations 2020 (SI 2020/943)

20.This instrument modifies how the moratorium regime in Part A1 of the Insolvency Act 1986, as inserted by the Corporate Insolvency and Governance Act 2020, applies in relation to certain energy companies.10 According to the Department for Business, Energy and Industrial Strategy (BEIS), the main purpose is to require a relevant energy company to notify the Secretary of State and the Gas and Electricity Markets Authority (Ofgem) when it applies for, enters, extends or ends a moratorium, so as to inform the Secretary of State’s decision as to whether to apply for a special administration order under an energy special administration regime. The instrument also modifies the restrictions that apply on enforcement and legal proceedings during the moratorium to enable Ofgem to carry out any legal process without having to seek the court’s permission, where this is necessary to protect the interests of consumers. This may involve enforcing licencing obligations or revoking licences. BEIS explains that the pandemic has increased significantly financial pressures on energy companies which are expected to become more acute in the Autumn and Winter, and that the changes are needed urgently to support the Secretary of State and Ofgem in considering whether to apply for special administration for any energy company to protect consumers.

Public Services

Local Government (Structural Changes) (Coronavirus) (Amendment) Regulations 2020 (SI 2020/809)

21.Current legislation11 specifies a period of two years for certain plans, reviews, schemes, statements and strategies which new unitary authorities have to prepare, for example in relation to homelessness, housing assistance or accessibility. This instrument extends this deadline by 12 months for single tier authorities with reorganisation dates in 2019, 2020 or 2021, so that the new unitary authorities have a total of three years from their reorganisation date to prepare the documents. The Ministry of Housing, Communities and Local Government says that the extension has been requested by a number of unitary authorities and is necessary because the resources required to meet the two-year deadline have been impacted significantly by the pandemic.

School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) (No. 2) Regulations 2020 (SI 2020/908)

22.This instrument deals with arrangements for the exclusion of pupils from school during the pandemic. The instrument extends most of the time limited arrangements made by an earlier instrument, so that they apply to exclusions occurring between 25 September 2020 and 24 March 2021.12 The measures that are extended in full are the provisions for meetings of responsible bodies13 and independent review panels to take place virtually if participants agree to meet remotely and if certain conditions can be met to ensure procedural fairness; and the extension by ten school days to the application window for an independent review, where a permanently excluded pupil is not reinstated by a responsible body. To ensure that reinstatement decisions are made promptly, the instrument specifies that if a responsible body or independent review panel has not been able to meet in person or virtually within the normal timescales, the time limit will be extended for only such period as is reasonably necessary for a reason related to the pandemic. This is a stricter time extension than that set out in the earlier instrument. The Department for Education says that this is to ensure a return to normal timescales where this is possible, as timely reinstatement decisions benefit pupils and their families. The Explanatory Memorandum includes a helpful summary of discussions the Department had with teaching unions, head teachers, local authorities, representatives of governors and trustees, the Office of the Children’s Commissioner for England, advocacy groups, and stakeholders representing parents and pupils (including the Special Educational Consortium) to assess the effectiveness of and support for the arrangements made by the earlier instrument.

Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020 (SI 2020/909)

23.This instrument follows an earlier instrument laid in April, which relaxed a significant number of statutory requirements relating to children’s social care to support children’s services during the pandemic. This earlier instrument lapses on 25 September 2020. The Department for Education (DfE) explains that the flexibilities were used infrequently and that, following public consultation, it has decided that most of the flexibilities should not be extended. Several key flexibilities will be retained, however, to assist the delivery of children’s social care during the recovery stage of the pandemic.

24.The Committee welcomes that, as part of the consultation on this instrument, DfE discussed its approach with the Office of the Children’s Commissioner, major children’s charities and others.14 We had criticised a lack of consultation on the earlier instrument. DfE says that a majority of respondents agreed with the proposals and that the changes will expire on 31 March 2021. The key flexibilities that will be retained include the following:

25.DfE has published guidance on how the changes should be applied as well as a Children’s Rights Impact Assessment15 and an Equality Impact Assessment.16 The Department will continue to monitor the use of the flexibilities and a further statutory instrument would be required to extend the measures should the pandemic or its impacts last longer.

Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (SI 2020/939)

26.This instrument enables the Secretary of State for Education to disapply and modify temporarily certain requirements in the Statutory Framework for the Early Years Foundation Stage (EYFS) for an early years provider in England, where it is not reasonably practicable for that provider to comply with the learning and development requirements, the progress check at age two and specific elements of the safeguarding and welfare obligations set out in the EYFS due to legislative prohibitions, requirements or restrictions related to the pandemic. The instrument also modifies certain requirements relating to the qualifications of staff and staff holding a paediatric first aid (PFA) certificate. The measures may apply in either a national or local lockdown and will expire on 31 August 2021. The Department for Education (DfE) explains that the measures build on an earlier SI which provided for similar disapplications and modifications, but that because the earlier instrument expires on 25 September, it has become necessary to allow the adjustments to continue, but only in the event of a period of intervention either at national or local level. At all other times the EYFS requirements will apply as usual. DfE adds that the removal of the EYFS Profile assessment for the school year 2019-20 in the earlier instrument is not replicated for the 2020-21 school year. As under the earlier instrument, providers should use either reasonable or, in relation to PFA, best endeavours to deliver the EYFS during any periods of intervention. Any disapplication will apply automatically to providers who are prevented to comply with EYFS requirements due to national or local coronavirus related restrictions or requirements.

Changes to benefits

Local Government Pension Scheme (Amendment) (No. 2) Regulations 2020 (SI 2020/893)

27.This instrument makes changes to allow the 87 administering authorities in the Local Government Pension Scheme (LGPS) to amend the contributions of Scheme employer(s) between actuarial valuations in certain situations, for example where there has been a significant change in liabilities in respect of a Scheme employer. The instrument also provides that when a Scheme employer is exiting the LGPS, administering authorities may spread a Scheme employer’s exit payment or defer an exit payment under a deferred debt agreement with the Scheme employer. The Ministry of Housing, Communities and Local Government (MHCLG) explains that the changes were consulted on in 2019 but have been prioritised as a result of the impacts of the pandemic on the financial health of local government employers. According to MHCLG, Scheme employers have asked the Government to bring forward the changes to assist them in managing and mitigating COVID-19 risks.

Tax Credits (Coronavirus, Miscellaneous Amendments) (No. 2) Regulations 2020 (SI 2020/941)

28.This instrument makes changes to ensure that payments under the various coronavirus schemes and grants to support self-employed people are counted as income only once in calculating any entitlement to tax credits. The instrument also ensures that payments made under the new Department for Health and Social Care self-isolation payment scheme are disregarded in calculating entitlement to tax credits. In addition, the instrument removes the disregard of payments under the NHS and Social Care Life Assurance Scheme. HM Revenue and Customs (HMRC) explains that an earlier instrument17 provided that payments under this Scheme were not counted as income for the purposes of entitlement to tax credits, but that this was unnecessary as the payments would not count as income in any event because they are capital payments. This instrument therefore removes references to the payments to avoid confusion. The instrument also deals with changes to flexible-furloughing, as set out in the Chancellor’s Direction on 25 June 202018 in relation to Coronavirus Job Retention Scheme eligibility. HMRC says that currently the definition of “furloughed” in the tax credits regulations does not provide cover to employees who are flexibly-furloughed. This instrument ensures that they remain covered and eligible to Working Tax Credit.

Delayed or revoked legislation

Postponed Elections and Referendums (Coronavirus) and Policy Development Grants (Amendment) Regulations 2020 (SI 2020/926)

29.These Regulations make consequential provision to deal with the postponement of local and parish elections, and elections for the Greater London Assembly, the Mayor of London and police and crime commissioner posts, which did not take place in May 2020. Although these elections were cancelled, preparations were advanced and these Regulations provide for postal votes already cast to be declared void, documentation to be filed and Returning Officers’ expenses already incurred to be paid. Donations to and expenses of candidates are also covered.

4 Health Protection (Coronavirus, Restrictions) (Blackburn with Darwen and Bradford) Regulations 2020 (SI 2020/822).

5 Health Protection (Coronavirus, Restrictions) (North of England) Regulations 2020 SI 2020/828, as amended by SI 2020/846, SI 2020/865, SI 2020/897 and SI 2020/907.

6 Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020 (SI 2020/889); see 25th Report, Session 2019-21 (HL 123).

7 Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/368), Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/369), and Competition Act 1998 (Solent Maritime Crossings) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/370); see 11th Report, Session 2019-21 (HL 49). Competition Act 1998 (Health Services for Patients in Wales) (Coronavirus) (Public Policy Exclusion) Order 2020 (SI 2020/435); see 14th Report, Session 2019-21 (HL 60).

8 See: JCSI, 12th Report (HL 64, HC 75-xii) and 13th Report (HL 70, HC 75-xiii), Session 2019-21.

9 See: 14th Report, Session 2019-21 (HL 60).

10 These companies are “protected energy companies” which hold an electricity distribution or transmission licence or a gas transporter licence, the “smart meter communication licensee” which is responsible for linking smart meters in homes and small businesses with energy suppliers, network operators and energy service companies, and “energy supply companies” which hold an electricity or gas supply licence.

11 Local Government (Structural Changes) (Transitional Arrangements) (No.2) Regulations 2008 (SI 2008/2867).

12 School Discipline (England) (Coronavirus) (Pupil Exclusions and Reviews) (Amendment) Regulations 2020 (SI 2020/543); see 17th Report, Session 2019-21 (HL 73).

13 The ‘responsible body’ is the governing body in the case of a maintained school, the management committee in the case of a pupil referral unit, and the proprietor (Academy Trust) in the case of an Academy.

14 DfE, Children’s Social Care: Government consultation response (August 2020): [accessed 10 September 2020].

16 DfE, Public Sector Equality Duty: Equalities Impact Assessment (August 2020): [accessed 10 September 2020].

17 Tax Credit (Coronavirus, Miscellaneous Amendments) Regulations 2020 (SI 2020/534); see 16th Report, Session 2019-21 (HL 68).

18 HM Treasury, The Coronavirus Act 2020 Functions of her Majesty’s Revenue and Customs (Coronavirus Job Retention Scheme) Direction (25 June 2020): [accessed 10 September 2020].

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